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The "Offensive Use" Doctrine

On May 29, Seibert ordered Peirce's firm to produce correspondence with client Earl Baylor, a former CSX worker who sued the railroad in state over asbestos exposure.

"Simply put, a lawyer or law firm may not engage in fraudulent or criminal activity and then hide behind any privilege to protect the firm's or the individual lawyer's interest," Seibert wrote. "The Court believes that this is exactly what Defendant is attempting to do in this case.

"These documents are central to CSX's contention that the defendants in this case have fabricated personal injury claims and evidence."

He relied on a 1988 appellate court decision to hold that "lawyer misconduct may eviscerate both work product production and the attorney client privilege."

He also applied an exception that the West Virginia Supreme Court of Appeals created in 2004 for crime and fraud.

Seibert presides over preparation for trial on CSX's conspiracy claim against Peirce, the firm of Peirce, Raimond & Coulter, and radiologist Ray Harron of Bridgeport.

CSX at first sought to challenge multiple suits that Peirce filed for CSX workers in West Virginia state courts, but Stamp allowed only a claim involving Baylor.

CSX has turned Baylor into a reverse class representative, weaving his case into patterns that involve thousands of suits.

After Seibert ordered Peirce to produce a questionnaire Baylor filled out, CSX lawyers found different handwriting on his symptoms than on the rest of the sheet.

Peirce resisted further production and testified at a May 4 hearing that he intended all his communications with Baylor to be confidential.

Seibert wrote that he didn't doubt the testimony. "However, this is not determinative as to the crime fraud and misconduct exception to the rule," he wrote.

Seibert's order measured the height of the hurdle the railroad cleared.

"The attorney client privilege exists to prevent compelled disclosure of confidential information between an attorney and a client," he wrote.

"This confidential relationship is the backbone of our judiciary," he wrote.

It protects verbal and written communication including electronic mail, he wrote.

He balanced it against "In re Impounded Case," a 1988 opinion by Judge Seitz of the Third Circuit appeals court.

"It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client's privilege with respect to documents tending to show criminal activity by the lawyer," Seitz wrote, "On the contrary, the values implicated, particularly the search for the truth, weigh heavily in favor of denying the privilege in these circumstances."

Seibert followed this excerpt by noting that, "Of course, this case is not in the criminal context."

He wrote, "However, this Court believes the same principles laid out so eloquently by Judge Seitz apply here."

He ordered Peirce to produce all blank preprinted diagnosis forms that the firm sent to Baylor and related correspondence.

He ordered Peirce to produce "all correspondence relating to the non-privileged 'asbestos questionnaire' generated by the Peirce firm and completed by Baylor for the purposes of disclosure and settlement."

He wrote that the documents "are necessary to impeach Peirce's claim that he had a good faith basis to believe Baylor was exposed to asbestosis as a CSX employee."

He ordered Peirce to identify the date when the firm received a negative CT scan of Baylor, finding it necessary to impeach a claim that he wasn't aware of the scan.
--------------------------------------FELA FELLA COMMENT: This piece of litigation is getting very nasty and, if the allegations are true, could result in loss of licensure and jail time for this, once Union Designated, counsel. This type of behavior, if true, is the exact stuff that gives a general bad taste in your mouth about personal injury lawyers. If it is true, I hope they stick him and the doctor under the jailhouse as it is not representative of the many hard working honest lawyers in the U.S. Another thing this litigation does is it takes the focus off of CSX which happens to have some of the meanest most manipulating "higher-ups" in the railway industry. CSX will stop at nothing to have an injured railroad worker not make a claim. The resort to intimidation tactics that have been taken to an art form!

The "Offensive Use Doctrine" is a legal doctrine that says that if a lawyer commites a crime, the lawyer cannot come back later and assert a privilege to forestall the production of documents.

Story Title: Asbestos plaintiff knows little about his case against CSX

6/19/2009 11:18 AM
By Steve Korris

WHEELING, W.V. - Earl Baylor's asbestos exposure suit against his former employers at CSX Transportation has brought him fame, but lawyers who deposed him last month discovered that he knew next to nothing about his case.

"Baylor's case was a sham," CSX lawyer Marc Williams of Huntington, W.V. wrote to U.S. District Judge Frederick Stamp on June 16.

During his May 11 deposition, Baylor "had virtually no knowledge of the circumstances" around his representation by Peirce, Raimond and Coulter of Pittsburgh, Williams wrote.

He wrote that Peirce firm lawyers "consistently acted without his authorization."

He wrote that at his deposition Baylor identified his own signature on a questionnaire but said handwriting on the asbestos exposure section belonged to someone else.

CSX sought to challenge hundreds of suits, but Stamp ruled that he would hear evidence only about Baylor's suit.

CSX lawyers sought evidence from Baylor but he didn't tell them much.

"Baylor did not know the screenings he attended were conducted by the Peirce firm," Williams wrote.

Baylor didn't receive results of the screenings, he wrote.

Baylor "offered conflicting testimony as to whether he even understood that the Peirce firm had filed a lawsuit against CSX on his behalf," he wrote.

Baylor didn't know where the suit was filed, he wrote.

Baylor didn't know the suit was dismissed in 2006, refiled in 2008, and dismissed again, he wrote.

"Peirce himself admits that Baylor's claim was refiled in 2008 without any conscious consideration by any employee at the Peirce firm," he wrote.

Williams pleaded to pursue a claim against former Peirce associate Louis Raimond, who claims his retirement in 2003 clears him of responsibility.

"While it is true that Raimond did not file Baylor's claim, he created it," Williams wrote.

"Raimond orchestrated the Peirce firm's mass litigation screening program in the late 1980s," he wrote.

"Raimond was solely responsible for the selection and retention of the firm's screening doctors until his retirement," he wrote.

"A jury could reasonably conclude that Raimond simply walked away from the proverbial ticking bomb, knowing a claim would still be filed based upon the evidence he helped manufacture and having done nothing to stop it," he wrote.

He wrote that Peirce and Raimond directed technician Jim Corbitt to take low quality X-rays of Baylor and others in a hotel parking lot near Augusta, Ga.

"Corbitt produced an X-ray of Mr. Baylor that was both underexposed and underinflated so as to show more white marks in the lung fields than would be seen on a higher quality film," he wrote.

The firm sent Baylor's X-ray to Harron, who had generated about 6,000 positive reports for the Peirce firm alone.

"As he did in about 65 percent of all X-rays sent to him by the Lawyer Defendants, Harron found Baylor's to exhibit signs consistent with asbestosis," he wrote.

He wrote that the firm received unsolicited copies of Baylor's medical records with a report from physician Christopher Knox finding no sign of asbestosis.

"Although the Lawyer Defendants maintained this admittedly significant piece of evidence in their CSX litigation file for more than two years prior to filing suit, they now claim -- incredibly -- they never knew about it," he wrote.

He wrote that physician Donald Breyer, who confirmed Harron's report, rubber stamped Harron's reports more than 90 percent of the time.

He wrote that Harron's career as a litigation doctor ended in 2005 when U.S. District Judge Janis G. Jack of Corpus Christi, Texas, concluded that he participated in a scheme to manufacture diagnoses for money.

He wrote that in 2007 Peirce instructed Baylor to travel to Columbia, S.C., for examination by Richard Cassoff, Peirce's personal physician.

Cassoff examined 197 CSX workers in a day, he wrote.

"Given the foregoing circumstances, it should come as no surprise that Cassoff 'diagnosed' Baylor and every other client he saw as having asbestosis," he wrote.

FELA FELLA COMMENT:
This is a follow up story to the one I initially posted and is a bit troubling to me. Here is why: A law firm that is hired by someone to prosecute a claim for someone has an absolute duty to represent that person zealously. For example if someone injured themself in a slip and fall accident, they know they are hurt and they hopefully seek a lawyer's advice on whether they have a good claim or not. If they are so advised that they do have a decent liability claim and the lawyer sends them to a doctor and, for example, MRIs are performed that demonstrate some disk involvement that is causing their pain and a decision is made to go forward, the attorney MUST zealously represent their client from that moment forward. They should also "reasonably" keep their client informed. But the lawyers and the lawyers' staff are busy and writing an update letter every month simply does not occur. In an ideal world that would be an awesome thing but if it is an issue of meeting deadlines and getting a monthly update letter explaining that nothing much has happened since last month, I can assure you the deadline will be met and the update letter is going to go by the wayside. However, as a case naturally progresses the client is advised because he/she is doing something, e.g., answering interrogatories, giving a deposition, getting a surgery, etc. So, de facto, they know what is going on in their case. This problem is exponentially increased in mass tort claims because they move "sloth like" and there are so many plaintiffs. So, when the CSX lawyer makes a "big deal" about Mr. Baylor (the asbestos Plaintiff) not knowing the details of the status of his claim, this is just hyperbole and needs to been seen by Judge Stamp in this case as such.

The real issue in this case is did the doctor trump up Mr. Baylor's claim and did the lawyer know about it and, perhaps, was it done on other claims as well. That is where the focus should be. A lawyer is entitled and should, in fact, rely upon a doctor's conclusions. Lord knows, the railroad will have its set of doctors that say the plaintiff is not hurt no matter whether the plaintiff is hurt or not. These "mass tort" claims are BIG MONEY claims at the end for the lawyers and having a "system" in place for diagnosis is essential if a law firm is going to be handling them properly. It is when the system is fraudulent that is the problem. In the end, I am sure Judge Stamp is going to confine the inquiry just to that issue.

Comment

They used to be called ambulance chasers and they were held in contempt by the legal profession, the media, and the public. Today some of these characters think they deserve esteem as crusaders for justice -- albeit wealthy ones -- their fast and loose tactics encouraged with a wink and a nod.

What happened to "the truth, the whole truth, and nothing but the truth"? In West Virginia, too often what we seem to get is "anything but the truth." Has self-enrichment replaced justice for all? Is a large settlement the end that justifies any means?

Attorney Robert Peirce should be asked those questions, along with his most famous client, Earl Baylor. Their day in court is getting closer each day.

As reported last week by The Record, Baylor sued a Fortune 500 company claiming it negligently made him sick, but he seems to know little about his own case. In a May 11 deposition, the former CSX Transportation employee and alleged victim of asbestos revealed a striking ignorance of the actions taken on his behalf by the Pittsburgh firm of Peirce, Raimond and Coulter.

Baylor didn't know where his lawsuit had been filed and he may not have even realized that Peirce firm lawyers filed a suit against CSX on his behalf, according to CSX attorney Marc Williams. He didn't know the Peirce firm conducted the health screenings where he received his "diagnosis," and he never received the actual results.

Williams describes Baylor's case as "a sham." Turning the tables on its accusers, CSX has filed a fraud-conspiracy suit against the Peirce firm, owner Robert Peirce, and radiologist Ray Harron. Trial is set for Aug. 11.

This trial could trigger the first rebuke in a long-overdue chastisement of modern day ambulance chasers, one that will redound to the benefit of all law-abiding West Virginians.

We make no brief against trial lawyers in general. Our criticism is with the bad ones, who bend or break the rules in pursuit of fortune, tarnishing the reputations of their profession. Our complaint extends, however, to the indifferent ones -- the lawyers and judges who turn a blind eye to this travesty.

By actively or passively enabling the mischief-makers and self-seekers to put dollars before justice, they undermine the rule of law and bring disrespect upon themselves and their profession.

If West Virginians -- citizens and lawyers alike -- insist on high standards, we can shore up the rule of law and gain respect for our legal system and its practitioners.

FELA Fella Comment:As anticipated, CSX is getting all the play they can from this. I am not from West Virginia, but I am sure there are many fine, honest, hard-working trial lawyers there. As stated in a previous post, if Mr. Peirce, his firm and/or the doctor did actually do these things that CSX has alleged, then they should end up as somebody's punk in prison.

Comment

I see mass media adds from attorneys all the time, for all sorts of potential claims, and while I mildly disapprove of attorney advertising, I see they have to let people know they are out there. But the worst of the lot spend the most on their ads, and chicanery becomes the order of the day. We are in a fortunate position in that our unions take the time look into various firms. And then designate attorneys familiar with FELA, and the tom foolery that we have go through with regard to workplace safety. If sham firms even get the slightest advantage, it makes it harder for good claims to get out into the light of day. If only railroaders would look first to DLC firms and not let themselves be swayed by mass market "legal" service, we'd all be in a stronger position. If Mr Baylor ever had a good claim, it may never be known. I hope the industry will take a hard line and police itself. It's to the benefit of the injured and their counselors both.

Comment

I think that there is more to becoming DLC than meets the eye. It is true that DLC know FELA law because the bulk of their business is FELA. But it is truly the misinformed that believe that FELA DLC are the only great FELA lawyers available. Additionally, though I am sure that there is no graft nor corruption in Railroad unions of today, it was just a few years ago that people were actually conivicted in the FELA DLC/Union arena.

Comment

I think that there is more to becoming DLC than meets the eye. It is true that DLC know FELA law because the bulk of their business is FELA. But it is truly the misinformed that believe that FELA DLC are the only great FELA lawyers available. Additionally, though I am sure that there is no graft nor corruption in Railroad unions of today, it was just a few years ago that people were actually conivicted in the FELA DLC/Union arena.

ps-. It was either mr. Pierce himself and/or some of his partners that were DLC in the past......I think if my research is correct. You may want to check on that.

I'll take yer word on Messrs Pierce and his ilk. And I do remember what happened with the other union and some of their DLC's and officers. I surely didn't mean to imply that DLC's are without graft. Yet how do I take an outsider's word for their skill in this area? DLC's near to my terminal come to visit my union division often and talk with us on all manner of things. With that we are confident that we know where to turn. They are honest about the realities we face, what our responsibilities are, and what they realistically can do for us. When time is of the essence I am quite sure a railroad man is safest to look inside first.

sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

Comment

I'll take yer word on Messrs Pierce and his ilk. And I do remember what happened with the other union and some of their DLC's and officers. I surely didn't mean to imply that DLC's are without graft. Yet how do I take an outsider's word for their skill in this area? DLC's near to my terminal come to visit my union division often and talk with us on all manner of things. With that we are confident that we know where to turn. They are honest about the realities we face, what our responsibilities are, and what they realistically can do for us. When time is of the essence I am quite sure a railroad man is safest to look inside first.

Dear jonnyseeandoh!-

I am so glad you replied back because I kept looking at my answer and re-reading it and re-reading it. I was doing so because it is your absolute right to believe that a DLC law firm is your best bet to choose as your horse. And, if you truly believe that they are, I certainly DO NOT want to try to persuade you otherwise. Because, in the final analysis, YOU have to trust your lawyer because he/she may be working on a case that will affect you and your family's life forever.

Having said that, I know that there are good lawyers and there are bad lawyers and then you got the ones in between. Some DLC are good or great lawyers and some are very bad lawyers and then....you've got the one's in between. I will tell you, without any equivocation, that there are lawyers who are not DLC that, on any given day, could spin circles in the courtroom around MOST DLC.

FELA is not rocket science. In fact, other than the quirks or nuances related to the crafts, equipment and lingo, it is legally a hell of alot simpler than an esoteric products liability claim, medical malpractice claim, legal malpractice claim and, even in some quircky factual situations, a car accident claim. What is most important is the lawyer...not the law firm. Is the lawyer going to push your case like it was his/her only case? Is the lawyer going to stay up at night strategizing how he is going to gut the deponent the next day? Does the lawyer spend WHATEVER is necessary to hire the best experts necessary? Is the paralegal assigned to your case going to pick-up the phone when you call with what some might think is a silly question? Is the law firm going to, if necessary and if ethically permitted to do so, advance you money to pay for your family's needs while the case is pending so you don't lose your house? Is the lawyer going to personally meet with your treating doctor way way before his/her deposition takes place to make sure that he/she will "stand-up" and say the things necessary to get you the testimony you need to maximize your future earnings claim? (and, if that doctor is not going to step-up for his client, then ever so gently get the client to a competent doctor who will so "stand-up"). Is the lawyer that you actually hire going to be the one that actually does the work on the case or, is it going to be handled by a 5 year associate (or even less)?, etc.........

As you can see, the question of who you choose is huge and if you think being DLC gets you there for you, I urge you to keep that thought process.

I hope you never need a FELA lawyer...but if you do, I hope you choose one that you would want in a foxhole with you!

Comment

I suppose it boils down to the fact that I am quite biased, and have two firms in mind that I do trust, for I know their work, and I know their people. I was hoping that firms got DLC status at least in part for their excellence in parsing FELA. ( And all too aware there's more to it than that.) And I wish any firm not DLC that nevertheless can do the work, would make themselves known to us anyway. Some states don't permit attorneys to claim a specialty, yet one's professional history is one's resume to be sure. And where I come from; talking to us right here, as you do, and our local jurists visiting regularly helps us learn who's who, and engenders the trust which really is so necessary. I should be scared to death to find myself in a state of immediate need, and not know who I might call.

sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

Comment

Thank you for recognizing the hard work I am putting in here. I am doing it day in and day out and I plan on continuing to do so. Yes...it would be nice to be able to walk into a Union hall and speak with you. I literally had to stand out in the freezing cold outside a Union Hall in New Mexico because I was not DLC to speak on FELA topics. Our firm has gone hundreds of miles to just feed gangs all over the U.S. because there we can explain who we are and what we can do. It is hard to get the name out but we have been doing it for years that way and everyone we have represented has a smile on their face at the end [so far!].

Jonny- Its not just Gordon & Elias...there are others too that are not "anointed' with a DLC from the one's at the top. To me, if a Union President or Vice-President was really thinking correctly, they would have (1) a written test on FELA administered to every lawyer in the firm; (2) they would invite ALL wanna be DLC to be "annointed" once they passed the test; and (3) they would require that a portion of the fee be given to a charitable organization such as the YFBF. The more the merrier I say. The injured railroader should be able to choose from as many qualified firms as possible.

But, as my Grandad always said, "Wish in one hand and [poop] in the other and see which one fills up first!"

Comment

Well I for one have told my wife to shop around, DLC's are lawyers, non designated are lawyers...When you need a lawyer you better check for the best. I know I have a law firm working for us in a lawsuit and they are the best we could afford, will it pay off no one knows how the judge will rule. But I for one will not limit my options to one that was chosen for me, when they will not allow others to be DLC's because of the good ol boy syndrome. We need more firms and we need better assistance at a fair price. I say shop for the best firm.

Comment

HarronWHEELING - CSX Transportation has asked U.S. District Judge Frederick Stamp to strike testimony of three doctors in the railroad's fraud trial against Pittsburgh asbestos lawyers Robert Peirce and Charles Raimond.

CSX lawyer David Bolen of Huntington wrote on July 6 that Peirce and Raimond improperly changed their reasons for calling the doctors.

Bolen wrote that in a motion for summary judgment they stated that the doctors would testify that former CSX worker Earl Baylor suffered from asbestosis.

In a more recent brief, Bolen wrote, they stated that they would not offer the opinions of the doctors for the truth of the matter.

"This bait and switch cannot be countenanced," Bolen wrote.

He described the opinions of doctors James Ballard, Roy Johnson and Henry Smith as irrelevant hearsay.

He urged Stamp to classify them as experts rather than treating physicians, subjecting them to greater disclosure with fewer privileges.

Neither Ballard nor Johnson examined Baylor or his X-ray, he wrote.

Smith disavowed any relationship with Baylor and stated at a deposition that he didn't have the slightest idea whether lawyers relayed his results to Baylor, Bolen wrote.

According to Bolen, Smith said, "It's not that clinically significant because it's only an X-ray finding."

Comment

PeirceHarronCHARLESTON - A Pittsburgh-based law firm and a West Virginia physician were part of an intricate web of deceit that led to big money for all, say their accusers in a civil fraud lawsuit.

The Robert Peirce and Associates firm and Bridgeport radiologist Dr. Ray Harron face allegations in federal court leveled by CSX Transportation that the two conspired to create false asbestos exposure diagnoses for CSX employees.

With a trial set to begin Aug. 11 at U.S. District Court in Wheeling, CSX seeks to recover the cost of defending and settling allegedly fraudulent asbestos claims.

The Peirce firm and Harron deny being involved in fraud, according to court documents.

The players

It all begins with "The Mason Enterprise," according to court filings. And the alleged fraud wasn't just targeting CSX, but other industrial giants such as Owens Corning.

Charlie Heath Mason, an Alabama resident, was co-owner and operator of a company called N&M -- the latest of at least four others that were in the same business of coordinating mass screenings of potential plaintiffs.

The earliest of the "enterprise" was begun by Jewel "Jerry" Pitts, Mason's step-grandfather in 1989. The enterprise companies were called Pulmonary Advisory Services, Pulmonary Testing Services and Gulf Coast Pulmonary Laboratory. Jewel and his cousin, Glenn Pitts, together owned another company, Pulmonary Advisory Services of Louisiana.

In the early 1990s, Glenn Pitts approached a former Mississippi chiropractor, Dr. Harry Netherland, asking if Netherland could perform x-rays for the Pitts' companies, court filings say.

Netherland provided his wife, Molly Ruth Netherland, with the office space and equipment to perform the x-rays for the Pitts' businesses.

Glenn Pitts got out of the business in 1992 and transferred the testing equipment to his cousin Jewel "Jerry" Pitts, who then started Pulmonary Testing Services. This company worked exclusively for asbestos injury law firms, the filings say.

In 1993, Mason graduated high school and started working for his step-grandfather's company, doing clerical work, the filings say. He also directed potential claimants to law firms that paid PTS for its work.

Harron came into the fray in late 1994 to replace two other doctors who had previously been reading the x-rays and diagnosing clients. Harron became the diagnosing physician and medical director of PTS in 1995, the filings say.

Harron quit his practice in radiology and began exclusively evaluating the x-rays taken of potential asbestos litigation clients.

The first rumblings of trouble came in 1996 when Owens Corning sued the Pitts cousins and a former doctor for violations of federal racketeering laws in U.S. District Court in New Orleans. The Pitts eventually settled with Owens Corning.

Then PTS stopped performing the screenings.

But that didn't stop Jerry Pitts. He and stepson Ted Broadus started Gulf Coast Pulmonary Laboratory. Molly Netherland continued to provide the company with x-rays through her business and Harron continued to read x-rays and give diagnoses for them.

Mason continued the enterprise by starting N&M that same year, bringing Netherland and Harron along. From 1996 through 2005, the company worked almost exclusively for law firms, the filings say, screening more than 45,000 people in connection with asbestos personal injury litigation. The company grossed more than $25 million over that time, the filings say.

N&M performed screenings for law firms in several states, including West Virginia, the filings say.

By 2001, Mason hired Christopher Taylor to actively court law firms to use N&M in performing screenings in litigation. Business increased for N&M when Taylor came on board, filings say.

Neither Mason nor Netherland was qualified to perform the type of work each was doing, the filings say, with Mason being blamed for playing "fast and loose with data" to ensure law firms got the results they wanted. Mason allegedly went as far as performing pulmonary function tests on people, though he was not qualified to do so, the court documents say.

Harron, all the while, was allegedly "over reading" the x-rays provided to him to falsely report lung scarring caused by the inhalation of asbestos or silica dust, filings say. Harron's rate of positively diagnosing people with asbestos damage "far exceeded" actual occurrence, the court filings say.

Harron's son, Andrew, later was brought in to take over for his aging father.

Eventually, several courts began to ban any screenings that originated from N&M.

How it worked

According to the CSX lawsuit, N&M spent more than $1 million in wooing law firms and lawyers. The company sent solicitation letters and brochures to targeted firms, representing itself as a group of "qualified professionals."

When the law firms were on the hook, N&M went to the media to generate claimants, court filings say. The company promised free screenings, but the cost was deducted from any settlements reached with the defendant companies.

Sometimes the law firms would participate in drumming up customers, filings say.

Once customers were found, the company would hold mass screenings in places such as motels, union halls and parking lots, filings say. The process allegedly would be tailored to whichever law firm had hired N&M.

When the x-rays were collected, they were sent to the Harrons.

According to the filings, the normal rate of lung scarring in a population of exposed individuals was 15 percent.

With the Harrons on board, some law firms saw rates of 90 percent, filings say.

Harron also is accused of finding a great number of people positive for both asbestos and silica poisoning. One set of results would be sent to a law firm engaged in asbestos litigation and the other sent to a firm engaged in silica litigation.

According to the filings, it is rare for a person to be affected by both asbestos and silica poisoning.

Once the positive diagnoses were achieved, N&M would advise those who did not yet have lawyers that if they went with a specific firm (one that hired N&M), they would not be charged for their screening and that a lawyer was waiting to talk to them nearby.

Should a law firm ask that the X-rays be read by a doctor other than Harron, N&M would send the X-rays on to another doctor who worked for N&M, according to the lawsuit. If that doctor found the X-rays negative, N&M would shop the X-rays around until a doctor got a positive read, filings say.

Some law firms would request this to hide the involvement of Harron in the X-ray readings, the lawsuit contends.

One allegation involving the Peirce firm and Harron says that the firm obtained a former CSX employee's X-ray from the Veterans Administration. Harron positively diagnosed the man. But the firm "invented" a diagnosing doctor in Huntington to allegedly hide Harron's involvement, the suit claims.

In the end, armed with the positive results, the law firms would flood courts with lawsuits. Instead of fighting each individual case, many companies simply settled, filings say.

Last month, a federal judge in Wheeling ruled that the Peirce firm must produce correspondence with Harron. U.S. District Judge Frederick Stamp affirmed Magistrate Judge James Seibert, who ruled in May that CSX could see correspondence between Harron and the Peirce firm.

Stamp's order allows CSX to see all communications between the firm and Harron since 1999, including consulting agreements and other contracts. It allows CSX to see any documents relating to expenses Harron or the firm created or retained in connection with Harron's review of X-rays. And, subject to a confidentiality order, it allows CSX to see the firm's internal correspondence concerning selection and retention of consulting physicians.

More on Harron

Harron reportedly has been paid millions by lawyers to diagnose potential asbestos victims. He sometimes did it at the rate of one patient per minute, reports say. The New York Times has reported that Harron made 75,000 diagnoses since the mid-1990s, commonly reading as many as 150 x-rays per day, at a rate of $125 each.

"In the eyes of defense lawyers fighting some of those claims, Dr. Harron was not a professional rendering an independent opinion, but a vital cog in a multibillion-dollar lawsuit machine," The New York Times said of Harron. "They contend that Dr. Harron's X-ray evaluations are unreliable at best, fraudulent at worst."

The Times also said that in 2005, Federal Judge Janis Graham Jack found that Harron "failed to write, read, or personally sign" reports supporting 6,350 claims by people saying they had inhaled silica, another potentially dangerous material.

Testifying before Jack in Texas, Harron admitted to making diagnoses from X-rays taken by a screening company using mobile machines in parking lots. There were no doctors supervising the X-rays. The owners of the screening company said they were working for lawyers.

Harron said he did not physically examine the patients. He also testified that secretaries interpreted his X-ray readings into diagnoses letters that were rubber-stamped with his signature and mailed without his final read.

He also testified to making silicosis diagnoses in the same patients he had once diagnosed with asbestosis.

Jack wrote that the diagnoses relied on X-rays and on medical histories taken by screening companies or law firms, not on physical examinations, as the reports under his name claimed.

"When Dr. Harron first examined 1,807 plaintiffs' X-rays for asbestos litigation," Jack wrote, "he found them all to be consistent only with asbestosis and not with silicosis." But after re-examining X-rays of the same 1,807 people "for silica litigation, Dr. Harron found evidence of silicosis in every case," she wrote.

Now retired, Harron is a B-reader, which is a doctor certified by the national Institute for Occupational Safety and Health to detect abnormalities such as black lung disease, asbestosis and silicosis in chest X-rays.

A fake doctor

In a high-profile case involving CSX, the Peirce firm and Harron, the railroad giant unearthed another scandal when plaintiff Rodney Chambers of Huntington fabricated a doctor who he claimed had treated him for asbestosis.

Chambers filed his asbestosis complaint against CSX in Marshall (West Virginia) Circuit Court on April 9, 2002. The Peirce firm filed a motion to refer Chambers and several hundred other consolidated cases to mediation. That process was similar to other trial plans that CSX says forced it to rely upon limited information provided by the Peirce Firm, including x-rays taken at its occupational asbestosis screenings, for settlement negotiations.

CSX said Chambers provided the name of a Dr. Oscar Frye in Huntington as the physician who treated him for his asbestosis. But through its investigation, CSX "determined that there has never been a physician, chiropractor, podiatrist, physician's assistant or osteopath licensed to practice in the State of West Virginia by any licensing board or agency with the name 'Oscar Frye.'"

Upon further investigation, the phone number Chambers listed for Dr. Frye has belonged to a Huntington woman for 12 years, and the address he listed for Frye's office does not exist in Huntington and hasn't since at least 1954.

"Without faking this type of medical evidence, plaintiff Chambers would not have been able to allege a proper cause of action against CSXT," CSX claimed.

CSX also says the Peirce firm that specializes in asbestosis claims provided its plaintiffs with a "pre-printed form and diagnosis regarding their potential claim and its alleged cause."

CSX sued the Peirce firm in 2005, alleging a conspiracy to fabricate suits. CSX later added Harron to the suit.

COMMENT: This, if all true, is going to be quite the free for all starting on August 11th. This Judge has showed a "no nonsense" approach all through this case. If CSX, in its case-in-chief, makes this case, I would not want to be the defense lawyer. In most states, a judge is not permitted to "comment" on the evidence, but, this NOT the case in federal court. Often times, a federal judge stops the questioning and actually questions the witness. My sense is that this judge, at least from what I can tell from his discovery rulings, senses that there may be some veracity to CSX's claims. It will not be pretty if CSX connects the dots.

Harron
WHEELING - Asbestos lawyer Robert Peirce of Pittsburgh hasn't turned over vital documents to CSX Transportation for the railroad's fraud and conspiracy trial against Peirce's firm and radiologist Ray Harron of Bridgeport, according to CSX lawyers.

On July 30, David Bolen of Huntington asked U.S. District Judge Frederick Stamp to clarify that an order he issued on June 5 requires production of the documents.

The documents include at least eight pages of internal memoranda relating to Harron, Bolen wrote.

"CSX believes these documents, as well as many others currently being withheld, could provide evidence in support of its fraud and conspiracy claims," he wrote.

Stamp plans to start trial Sept. 15.

He plans to start a smaller trial Aug. 11.

The Aug. 11 trial will explore the role of Peirce's firm and his employee Robert Gilkison in substituting a CSX worker for another worker's X-ray.

The first trial won't concern Harron, but the second trial will.

In 2005, U.S. District Judge Janis Jack of Corpus Christi, Texas, exposed fabrication of about ten thousand X-rays by Harron and other radiologists.

Since then Harron has invoked his Fifth Amendment right against self incrimination in civil suits and Congressional hearings.

Last December, CSX served Harron with a request to produce documents. Harron resisted, and in February CSX moved to compel production.

In March Peirce filed an emergency motion for a protective order to keep CSX from seeing its correspondence with Harron.

At a hearing, Magistrate Judge James Seibert narrowed the dispute to production of the requests Peirce's firm sent to Harron for chart reviews.

In May Seibert denied the protective order, ruling that Peirce and his firm lacked standing to file the motion.

"The Peirce firm has totally and completely waived any attorney-client privilege or work product doctrine protection with respect to the documents in Dr. Harron's possession because it filed no responsive pleading and asserted no claim of attorney-client privilege or work product doctrine," Seibert wrote.

Peirce asked Stamp to overturn the order, but in June Stamp adopted it in its entirety.

Stamp held that Seibert "was not clearly erroneous in finding that the Peirce firm defendants failed to take reasonable steps to protect the alleged privileged documents in Dr. Harron's possession."

He wrote that Peirce moved for a protective order almost three months after discovery was requested and two months after Harron responded.

Still Peirce resisted, prompting Bolen to move for clarification.

For Peirce, Walter DeForest of Pittsburgh responded on July 31 that the railroad misconstrued the record and Stamp's order.

According to DeForest, Seibert split the request for documents into two categories and ruled on only one category.